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Do Away with our Constitution

That’s what Louis Michael Seidman, writing in the New York Times last week, wants to do. He claims to have been teaching Constitutional law for quite a long time, but that’s hard to believe, after reading his epistle (though, in fact it’s true–at Georgetown, where he teaches Constitutional law, but from this writing, it seems to me he teaches very little of the Constitution). On the other hand, another great Constitutional scholar, Ezra Klein, agrees with him.

Here are some of Seidman’s…rationales.

Imagine that after careful study a government official—say, the president or one of the party leaders in Congress—reaches a considered judgment that a particular course of action is best for the country. Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action. Is it even remotely rational that the official should change his or her mind because of this divination?

Well, since that disagreement actually was centered on what the Constitution, the supreme Law of the Land, allows, yeah, he would have to give up his divination. Especially since the Constitution was designed to maximize the likelihood that he represents American citizens, his collective bosses, and to ensure that their view of what is best for the country outweighs his own. Suppose, contra, that after a careful study a government official—say, the president or one of the party leaders in Congress—reaches a considered judgment that a particular course of action is best for him personally. Should that judgment be allowed to stand?

Constitutional disobedience may seem radical, but it is as old as the Republic. In fact, the Constitution itself was born of constitutional disobedience. When George Washington and the other framers went to Philadelphia in 1787, they were instructed to suggest amendments to the Articles of Confederation, which would have had to be ratified by the legislatures of all 13 states. Instead, in violation of their mandate, they abandoned the Articles, wrote a new Constitution and provided that it would take effect after ratification by only nine states, and by conventions in those states rather than the state legislatures.

And how terrible that was. Instead of being approved by the conclave of diplomats that was all that the Congress was under the Articles, or by unanimous approval of 13 disparate and independent States’ legislatures, it was approved by something far closer to the people themselves—those conventions, which were selected by an especially broad franchise of voters and one far more broad than the franchise that was allowed to select Seidman’s precious legislators. It was the Sovereign people who ratified the new Constitution, thereby explicitly validating the decisions of those constitutional disobeyers. Moreover, the remaining four States were not bound by a Constitution which their citizens did not ratify; they were free to go their own way, as the State of Rhode Island and Providence Plantations did for quite a few years before seeing the political and economic advantages of joining the union. That separate way also included the option of continuing under the Articles, with a Congress now consisting of diplomatsdelegates from those four States, and a new effort at amendment. In the end, though, the citizens of all thirteen States individually and separately ratified the Constitution, adding to the validation.

No sooner was the Constitution in place than our leaders began ignoring it. John Adams supported the Alien and Sedition Acts, which violated the First Amendment’s guarantee of freedom of speech. Thomas Jefferson thought every constitution should expire after a single generation. He believed the most consequential act of his presidency—the purchase of the Louisiana Territory—exceeded his constitutional powers.

And all of these men’s relevant actions or failures to act were overridden by the existence of that Constitution—which also acts as a brake against Seidman’s “considered judgment” government official. Moreover, that these men had feet of clay (including his slave owners) is an argument for holding government men fettered by a Constitution, not for allowing them freedom to run riot. As one of those disdained “white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves” but who could foresee the future of a society governed by men, noted,

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

Thus, that document that some find confusing because it was written more than one hundred years ago. And which has stood us in good stead since was ratified.

Returning to Seidman’s words:

Before the Civil War, abolitionists like Wendell Phillips and William Lloyd Garrison conceded that the Constitution protected slavery, but denounced it as a pact with the devil that should be ignored.

Neither that they were abolitionists or that they “conceded” anything did not make them right. In the event, slavery should have died out (literally) by 1808, but the slave States reneged on that bargain. In the end, the Constitution was Amended, after that Civil War, to explicitly abolish slavery. The argument simply to ignore the law was found as wanting then as it is now.

The fact that dissenting justices regularly, publicly and vociferously assert that their colleagues have ignored the Constitution…should give us pause. The two main rival interpretive methods, “originalism” (divining the framers’ intent) and “living constitutionalism” (reinterpreting the text in light of modern demands), cannot be reconciled. Some decisions have been grounded in one school of thought, and some in the other. Whichever your philosophy, many of the results—by definition—must be wrong.

Nor need the two schools be reconciled. Judicial activism is wrong. Judges’ oaths of office commit them, on their honor, to uphold the Constitution, not to amend it ab ecclesia de banco. Moreover, the Constitution is a living document, as Seidman and his “living constitutionalists” aver; however, it is that same Constitution’s Article V which shows how it thrives and evolves. As one of Seidman’s living constitutionalists, Justice Robert H Jackson, said, the Constitution (Jackson actually was referring to the Bill of Rights) is not a suicide pact. Jackson was right; however, what is suicide is deviating from the Constitution—including altering it without the requirements of Article V.

I could go on, but that’ll do for now. The rest of his diatribe is of a piece.

In the end, our Constitution is all that stands between us as a nation of laws and us as a nation governed by a few men who make the laws; it is all that stands between us as a nation whose government protects those individual rights, liberties, and duties that are part of our Creator’s endowment and us as a nation whose government presumes to grant (or withdraw) our rights, liberties, and duties.

If Seidman is dissatisfied with our Constitution, I’d like to see the text of his proposed Amendment(s). Article V, after all, as he well knows, is how our Constitution lives. That our Constitution causes so much frustration by getting so far in the way of facile “solutions” is one of its strengths. In the end, if he can’t convince mere men of the greatness of his ideas, perhaps his ideas aren’t so great.

Oh, one more thing. Seidman opens his piece with this:

[A]lmost no one blames the culprit: our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions.

But nowhere in the rest of writing does he name any of those “evil provisions,” or even any of the “archaic, idiosyncratic” ones. That’s the integrity of leveling a charge and then declining to support it.